Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America

Abstract

This essay comments on the three substantive articles comprising the University of Toronto Law Journal’s symposium on ferae naturae and the law of property. It argues that the articles collectively represent a reconsideration of the influential thesis developed by Robert Ellickson in Order without Law, that when members of any community resolve disputes arising in the course of some shared activity they are prone to do so in ways that avoid the costs that law imposes on the process of settlement because ‘coordination to mutual advantage without supervision by the state’ works better than order with it. Rather than confirming law’s unimportance, this essay argues, the articles collectively demonstrate the importance of law. The essay recognizes, however, that some of the ways in which the importance of law is demonstrated are distinct from the measures of importance originally considered by Ellickson. Following their lead, the essay considers additional criteria by which we might assess the significance of the law of property in wild animals – not least whether that law has taken the animals themselves into consideration.

Keywords: animals, property, Coase, custom, Pierson, Melville